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Synopsis

The Supreme Court on Monday issued notice in a Public Interest Litigation (PIL) challenging the vires of the Surrogacy Act, 2021 and the Assisted Reproductive Technology Act, 2021.

The plea challenges provisions under Sections 2(e), 2 14(2), 21, 22(4) and 27(3) and of the Assisted Reproductive Technology (Regulation) Act, 2021 and Rules 3, 7 and 12 of the ART (Regulation) Rules, 2022; as well as Sections 2(h), 2(s), 2(r), 2(zd),2(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C), 8 and Section 38(1)(a) of the Surrogacy (Regulation) Act, 2021 and Rules 3(1), 5(2), 6, 7 and 10 of the Surrogacy Rules 2022, on the ground that apart from having implementational hurdles, the same are arbitrary and discriminatory, a direct infringement upon the right to privacy guaranteed by law, as well as against the reproductive rights of women, and hence violative of Articles 14, 15(1) and 21 of the Constitution.

Filed through one Arun Muthuvel, who is an IVF specialist practicing at Chennai and the Managing Director of Iswarya Fertility Services Private Limited, the plea seeks a direction to be issued to the government to recognise the rights of women other than married women above thirty-five years of age to avail surrogacy as a means of assisted reproductive technique to experience motherhood.

Muthuvel has argued that both the impugned Acts fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques.

".....the two statutes impose restrictive regime which gravely impinges upon the most basic reproductive right of individuals. The two statutes, in fact, fail to imagine the various social and economic complexities of infertility and assisted reproduction, leave alone address the satisfactorily..", the plea submits.

The plea also highlights "blatant inconsistencies in the two statutes which create arbitrary classification and categorization that are not only devoid of logic but also entirely unconstitutional".

Also, it has been argued that the two pieces of legislation exclude from within its ambit same-sex couples and other members of the LGBTQ community, single women who are neither widowed nor divorced, single women who are widowed and/or divorced and less than the age of 35 or more than 45, single men, couples suffering from secondary infertility, couples where either partner does not fall within the defined age brackets couples where both partners are outside the defined age bracket and couples suffering from secondary infertility.

"...this exclusionary nature of the statute apart from falling foul of the Constitution, is also in contradistinction with other laws that recognise parenthood rights of individuals apart from married couple. For instance, the Hindu Adoptions and Maintenance Act, 1956 expressly permits a Hindu male as well as a female of sound mind, and who is not a minor, to adopt a child...", the PIL plea submits.

The plea states that "such a narrow sex-based classification is also in teeth of the Top Court's decision in Navtej Singh Johar & Ors. v. Union of India".

The notice has been issued by a division bench of Justice Ajay Rastogi and Justice CT Ravikumar to the Ministry of Health and Family Welfare, the Ministry of Women and Child Development and the Indian Council of Medical Research (ICMR) seeking their responses.

Furthermore, challenging the blanket ban imposed on commercial surrogacy which is alleged to be neither desirable nor may be effective, the plea states,

"In fact, the ban on commercial surrogacy, seemingly enacted to protect the impoverished women, denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right of giving birth. Further, a sudden and complete ban on commercial surrogacy is bound to create a black market and therefore more exploitation. Additionally, a completely altruistic surrogacy is not a guarantee for saving women from exploitation."

Case Title: Arun Muthuvel vs. Union of India